Vol. 149, No. 12 — June 17, 2015

Registration

SOR/2015-133 June 5, 2015

RAILWAY SAFETY ACT

Regulations Amending the Railway Safety Administrative Monetary Penalties Regulations

P.C. 2015-761 June 4, 2015

His Excellency the Governor General in Council, on the recommendation of the Minister of Transport, pursuant to section 40.1 (see footnote a) of the Railway Safety Act (see footnote b), makes the annexed Regulations Amending the Railway Safety Administrative Monetary Penalties Regulations.

REGULATIONS AMENDING THE RAILWAY SAFETY ADMINISTRATIVE MONETARY PENALTIES REGULATIONS

AMENDMENTS

1. Part 1 of Schedule 1 to the Railway Safety Administrative Monetary Penalties Regulations (see footnote 1) is amended by adding the following after item 5:

Item Column 1



Designated Provision		 Column 2

Maximum Amount Payable ($)

Individual		 Column 3

Maximum Amount Payable ($)

Corporation
5.1 Section 17.1 50,000 250,000

2. Part 1 of Schedule 1 to the Regulations is amended by adding the following after item 16:

Item Column 1



Designated Provision		 Column 2

Maximum Amount Payable ($)

Individual		 Column 3

Maximum Amount Payable ($)

Corporation
16.1 Subsection 32(3.1) 50,000 250,000

3. Part 2 of Schedule 1 to the Regulations is replaced by the following:

PART 2

DESIGNATED PROVISIONS OF THE RAILWAY SAFETY MANAGEMENT SYSTEM REGULATIONS, 2015

Item Column 1



Designated
Provision		 Column 2

Maximum Amount Payable ($)

Individual		 Column 3

Maximum Amount Payable ($)

Corporation
1. Section 5 50,000 250,000
2. Section 6 25,000 125,000
3. Subsection 8(1) 25,000 125,000
4. Subsection 8(2) 5,000 25,000
5. Subsection 8(3) 25,000 125,000
6. Subsection 9(1) 25,000 125,000
7. Subsection 9(2) 5,000 25,000
8. Subsection 9(3) 25,000 125,000
9. Subsections 10(1) and (2) 25,000 125,000
10. Subsection 10(3) 5,000 25,000
11. Paragraph 11(a) and section 7 25,000 125,000
12. Paragraph 11(b) and section 7 25,000 125,000
13. Paragraph 12(1)(a) and section 7 25,000 125,000
14. Paragraph 12(1)(b) and section 7 25,000 125,000
15. Subsection 12(2) 25,000 125,000
16. Section 13 25,000 125,000
17. Sections 14 and 7 25,000 125,000
18. Section 15 50,000 250,000
19. Subsection 16(1) 25,000 125,000
20. Subsection 16(2) 25,000 125,000
21. Paragraph 17(a) and section 7 25,000 125,000
22. Paragraph 17(b) and section 7 5,000 25,000
23. Paragraph 17(c) and section 7 25,000 125,000
24. Subsection 18(1) 50,000 250,000
25. Subsection 18(2) 25,000 125,000
26. Section 19 25,000 125,000
27. Paragraph 20(a) and section 7 25,000 125,000
28. Paragraph 20(b) and section 7 25,000 125,000
29. Paragraph 20(c) and section 7 5,000 25,000
30. Section 21 25,000 125,000
31. Section 22 5,000 25,000
32. Section 23 25,000 125,000
33. Subsection 24(1) and section 7 25,000 125,000
34. Subsection 24(2) 25,000 125,000
35. Subsection 24(3) 25,000 125,000
36. Subsection 24(4) 25,000 125,000
37. Subsection 25(1) 25,000 125,000
38. Subsection 25(2) 25,000 125,000
39. Subsection 25(3) 25,000 125,000
40. Section 26 25,000 125,000
41. Paragraph 27(a) and section 7 25,000 125,000
42. Paragraph 27(b) and section 7 25,000 125,000
43. Paragraph 27(c) and section 7 25,000 125,000
44. Paragraph 27(d) and section 7 25,000 125,000
45. Subsection 28(1) 25,000 125,000
46. Subsection 28(2) and section 7 25,000 125,000
47. Subsection 28(3) 25,000 125,000
48. Subsections 29(1) and (2) 25,000 125,000
49. Subsection 29(3) 25,000 125,000
50. Subsection 29(4) 5,000 25,000
51. Subsection 30(1) 25,000 125,000
52. Subsection 30(2) and section 7 25,000 125,000
53. Subsection 31(1) 25,000 125,000
54. Subsection 32(1) and section 7 25,000 125,000
55. Section 33 5,000 25,000
56. Section 34 5,000 25,000
57. Section 35 5,000 25,000
58. Section 36 5,000 25,000
59. Section 37 5,000 25,000
60. Section 38 25,000 125,000
61. Section 40 50,000 250,000
62. Section 41 25,000 125,000
63. Subsection 43(1) 25,000 125,000
64. Subsection 43(2) 5,000 25,000
65. Subsection 43(3) 25,000 125,000
66. Subsection 44(1) 25,000 125,000
67. Subsection 44(2) 5,000 25,000
68. Subsection 44(3) 25,000 125,000
69. Subsections 45(1) and (2) 25,000 125,000
70. Subsection 45(3) 5,000 25,000
71. Paragraph 46(a) and section 42 25,000 125,000
72. Paragraph 46(b) and section 42 25,000 125,000
73. Section 47 25,000 125,000
74. Sections 48 and 42 25,000 125,000
75. Section 49 50,000 250,000
76. Section 50 25,000 125,000
77. Paragraph 51(a) and section 42 25,000 125,000
78. Paragraph 51(b) and section 42 25,000 125,000
79. Subsection 52(1) 50,000 250,000
80. Subsection 52(2) 25,000 125,000
81. Paragraph 53(a) and section 42 25,000 125,000
82. Paragraph 53(b) and section 42 25,000 125,000
83. Section 54 25,000 125,000
84. Section 55 5,000 25,000
85. Section 56 25,000 125,000
86. Subsections 57(1) and (2) 25,000 125,000
87. Subsection 57(3) 25,000 125,000
88. Subsection 57(4) 5,000 25,000
89. Subsection 58(1) 25,000 125,000
90. Subsection 58(2) 25,000 125,000
91. Subsection 59(1) 25,000 125,000
92. Subsection 60(1) 25,000 125,000
93. Section 61 5,000 25,000
94. Section 62 5,000 25,000
95. Section 63 5,000 25,000
96. Section 64 5,000 25,000
97. Section 65 5,000 25,000
98. Section 66 25,000 125,000
99. Section 68 50,000 250,000
100. Section 69 25,000 125,000
101. Subsection 71(1) 25,000 125,000
102. Subsection 71(2) 5,000 25,000
103. Subsection 71(3) 25,000 125,000
104. Subsections 72(1) and (2) 25,000 125,000
105. Subsection 72(3) 5,000 25,000
106. Paragraph 73(a) and section 70 25,000 125,000
107. Paragraph 73(b) and section 70 25,000 125,000
108. Section 74 25,000 125,000
109. Sections 75 and 70 25,000 125,000
110. Section 76 50,000 250,000
111. Section 77 25,000 125,000
112. Paragraph 78(a) and section 70 25,000 125,000
113. Paragraph 78(b) and section 70 25,000 125,000
114. Subsection 79(1) 50,000 250,000
115. Subsection 79(2) 25,000 125,000
116. Paragraph 80(a) and section 70 25,000 125,000
117. Paragraph 80(b) and section 70 25,000 125,000
118. Section 81 5,000 25,000
119. Section 82 5,000 25,000
120. Section 83 5,000 25,000
121. Section 84 5,000 25,000
122. Section 85 5,000 25,000
123. Section 86 25,000 125,000

COMING INTO FORCE

Day of registration

4. These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The Railway Safety Administrative Monetary Penalties Regulations (AMPs Regulations), which came into force April 1, 2015, do not contain designated provisions for the recent initiatives that formed part of Transport Canada’s accelerated Rail Safety regulatory agenda. These include provisions for the new Railway Safety Management System Regulations, 2015, and legislative requirements under the Railway Safety Act (RSA). The first RSA provision applies to the new railway operating certificates (ROC) while the other is for ministerial orders that could be issued for deficiencies in a company’s safety management system that risk compromising railway safety. Amendments are required to close current enforcement gaps and would complement the existing railway safety oversight regime by providing a full set of tools to the Minister of Transport to effectively deal with safety enforcement.

Background

The initial AMPs Regulations were published in the Canada Gazette, Part II, on October 22, 2014, and included designated provisions for the Railway Safety Act, the 2001 Railway Safety Management System Regulations, the Mining Near Lines of Railways Regulations and the Railway Prevention of Electric Sparks Regulations.

Objective

The objective of these amendments is to provide the Minister of Transport with the necessary compliance and enforcement tools by expanding the scope of the existing administrative monetary penalties regime to encompass new regulations that were recently introduced as part of the Rail Safety Program and to close current enforcement gaps.

Description

These amendments modify Schedule 1 of the AMPs Regulations. The designated provisions of the previous Railway Safety Management System Regulations, Part 2 of Schedule 1 of the AMPs Regulations, are replaced by a new Part which sets out designated provisions for the new Railway Safety Management System Regulations, 2015.

Additionally, two minor amendments are made to Part 1 of Schedule 1. Section 17.1 of the Act is designated to reflect the fact that the Railway Operating Certificate Regulations came into force on January 1, 2015. This new designated provision will assist compliance by ensuring that no person operates a railway or railway equipment or maintains a railway without a railway operating certificate. Subsection 32(3.1) of the Act is also designated to allow the enforcement officer to issue administrative monetary penalties when a company fails to comply with a ministerial order to take the necessary corrective actions to address deficiencies in their safety management systems that risk compromising railway safety.

The schedules prescribe the maximum payable amount for an individual and a company for each violation of a designated provision. There are three distinct maximum payable amounts reflecting the level of significance of each designated provision measured by the seriousness of the consequences or potential consequences of the contravention. The three maximum payable amounts reflect low-risk violations of administrative-type provisions, medium-risk safety violations, and major safety violations that pose the highest risk to safety.

The maximum payable amounts for a violation are as follows:

Column 1 Column 2 Column 3
  Maximum Payable Amount ($) Maximum Payable Amount ($)
Level of Risk Individual Corporation
Category A If violation is low-level risk 5,000 25,000
Category B If violation is medium-level risk 25,000 125,000
Category C If violation is high-level risk 50,000 250,000

Examples of designated provisions of the Railway Safety Management System Regulations, 2015 and the maximum payable amounts prescribed include

Under the Act, any person served with a notice of violation may request from the Transportation Appeal Tribunal of Canada (TATC) a review of an alleged violation or the amount of the penalty. The Minister or the person served with a notice of violation may appeal the results of the determination to the TATC for final determination. As a quasi-judicial body, the TATC review process is less formal than court proceedings. Thus, an AMP regime is relatively inexpensive to administer within an existing compliance program, and it normally results in more timely and effective enforcement than prosecution.

Consultation

Industry has been aware of Transport Canada’s intentions to introduce an administrative monetary penalties regime to the Rail Safety Program since the 2007 recommendation of the Railway Safety Act Panel Report. In October 2014, the initial AMPs Regulations were introduced and subsequently published in the Canada Gazette, Part II, on October 22, 2014.

Stakeholders were also informed of the Department’s intentions to continually amend the AMPs Regulations to reflect new regulatory requirements at the May 28, 2014, meeting of the Advisory Council on Railway Safety. During February and March 2015, Transport Canada consulted with the following stakeholders on the proposed amendments to the Railway Safety Administrative Monetary Penalties Regulations:

Transport Canada received no comments from consulted stakeholders.

“One-for-One” Rule

The “One-for-One” Rule does not apply to these amendments, as there is no change in administrative burden.

Small business lens

The small business lens does not apply to these amendments, as no incremental costs will be imposed on small businesses that comply with the Act and its related instruments.

Rationale

The amendments to the AMPs Regulations capture new regulations and legislative requirements, which have been developed since the initial AMPs Regulations were published and address existing gaps in the current AMPs regime. These amendments complement the existing railway safety oversight regime by providing a full set of tools to the Minister of Transport to effectively deal with safety enforcement.

The amendments to the AMPs Regulations benefit the Canadian public by allowing Transport Canada to enforce requirements with respect to the Railway Safety Management System Regulations, 2015 and the railway operating certificates using an administrative process rather than resorting to prosecution in the courts. Criminal proceedings often result in considerable costs to the federal government and to the individual and/or corporation involved.

All government departments, and more specifically Transport Canada, have adopted what is termed a progressive or graduated approach to the compliance or enforcement activities under their authority. Where AMPs are proposed, they are invariably suggested as a complement or supplement to other compliance and enforcement tools. These amendments expand the application of the Minister of Transport’s compliance and enforcement tools, thereby increasing rail safety and public confidence.

The objectives of the Act include the promotion and provision of safety and security to the public and personnel, the protection of property and the environment in railway operations, the recognition of the responsibility of companies to demonstrate that they continuously manage risks related to safety matters, and the facilitation of a modern, flexible and efficient regulatory scheme that will ensure the continuing enhancement of railway safety and security.

Implementation, enforcement and service standards

The Regulations replace existing schedules with designated provisions for new regulations which have come into force since the initial AMPs Regulations were published.

To ensure that AMPs in respect to the new Regulations are applied in a fair, impartial, predictable and nationally consistent manner, guidance materials have been developed to align with the Rail Safety Program’s compliance and enforcement regime. Training will be provided to the Rail Safety Program officials within existing programs. Adding this guidance to the existing training program will ensure that departmental officials take a standard approach in similar circumstances to achieve consistent results.

Contact

Any questions related to the amendments to the Railway Safety Administrative Monetary Penalties Regulations should be directed to

Susan Archer
Director
Regulatory Affairs
Transport Canada
Telephone: 613-990-8690
Email: susan.archer@tc.gc.ca